Tag Archives: court case

Proof that Leadership training is not a waste of time?

THE STORY

Leaders sometimes as part of their duties can be forceful to ensure the teams and the organisational goals are met. Some as a generalization use aggressive behaviour as opposed to supporting assertive behaviour. In this case brought before the District court, it ended up costing the organisation just over $435,000. Yes, you read that right.

The employee claimed that the managers behaviour was “aggressive, belittling, harassing and or otherwise unreasonable ” at which point she suffered a psychiatric illness.

The employee brought a civil claim against the employer for being vicariously liable for the managers conduct. The employer had a duty of care to the employee. If the employee wasn’t performing to the position description, the manager had a number of avenues in which he/she could table the concerns in a manner which provided a space of fairness and safety.

coaching and mentoring gary tremolada

The manager could have opted for a number of different strategies including:

a. Conflict management, pre-emptive, reactive (a number of different approaches)

b. Informal one on one meetings

c Formal one on one meetings (performance management process)

d. Coaching and or mentoring plans

e. Awareness training in; harassment, bullying, victimisaton and parts of the Fairwork Act

f. emotional intelligence/self awareness training

Not all cases like this will end up in a court room. Though, it does beg the question of “how does an organisation gets to a point where this occurs?” There would have been indicators in the build up to the event.

The effects can be far reaching such as poor productivity, poor quality delivery, poor engagement, grievances, higher attrition rates, general disharmony and bullying. This ultimately affects organisational culture and morale. If you work in  Aged Care you maybe familiar with the Caplan study ’97 and the effects on its residents. These types of training for teams will cost far less than $435,000.

gary tremolada coaching and leadership training

What are you waiting for?

Source Eaton v TriCare (Country) Pty Ltd [2016] QCA 139 (15/7161) Fraser and Philip McMurdo JJA and Boddice J 3 June 2016

Constructive Dismissal Costs an Employer Over $200,000

I quit

The Story
An employee informed her employer that she was pregnant. The owners of the business responded the court heard in the following manner.

  1. What about me? I was going to retire at the end of the year”
  2. Employer demanded the employee to sign a “variation” to her contract, making her remuneration and ongoing employment contingent on the meeting of unattainable sales targets. She initially signed it and then requested to take the copy and read it over at home with her husband.
  3. Part of the variation was  to work additional hours and new sales targets.
  4. The owners then suggested that a return to part-time work after the conclusion of her maternity leave would not be “workable”
  5. The employee was told that she would not be able to run photoshoots later in her pregnancy, as this was not safe and “not a good look” for the business.
  6. The employer insinuated that her wages would need to be cut because she would not able able to generate income and
  7. She could endanger herself and others because of her pregnancy.

The employee eventually resigned which the court viewed as constructive dismissal.(the changing of an employee’s job or working conditions with the aim of forcing their resignation)

The court set to make an example of this type of behaviour by imposing hefty penalties.

The damages awarded were as follows;

a. Economic loss $164,079

b. Penalty for distress $10,000

c. Penalty to the business of $45,000

d. Penalty to both the owners of $16,000 divided equally

Ouch.

The Lesson

Human resource policies around managing pregnancy. Understanding the legal obligation you have under the Act. Consult the employee and if and when necessary medical advice will be required depending on the type of work.

Consult.
Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875 (30 April 2014)

Beginning a relationship at work?

 

relationship

..ends in a dismissal

The Story

A bank manager working for major bank for 16 years in a branch began an affair with a subordinate team member. He was married with 2 children for 12 years. He become an advocate for the subordinate to gain a promotion that would have seen her pay go from $58,000 to $90,000.

They moved in together in February. It was obvious that something was going on as provided evidence to the commission stating, the couple “arrived at the branch together, they had lunch together, and they and they spent a lot of time in each other’s offices and left the branch together at the end of the work day”.

When the subordinate was seconded to another site, the manager continued visiting the site under the guise of providing coaching and development. Rumours begun in that workplace, that they were having an affair. He held a team meeting stating that the romours had to stop otherwise he would “instantly dismiss” team members that didn’t comply.

His manager asked the bank manager several times if they were having an affair. He denied it. After this the relationship had broken down in August of the same year, he told his supervisor that they indeed had a relationship.

While giving evidence to the commission he said that he had lied to the employer because he was”ashamed and embarrassed” about the affair. Westpac would have moved the employees to other sites and it would not have caused any issue.

It got worse, when the relationship broke down the subordinate applied for an Apprehended Domestic Violence Order (ADVO). He breached the interim order and was given a good behaviour bond with no conviction recorded. The ADVO was subsequently withdrawn.

 

The Commissioner went on to say that the manager went to “considerable lengths” to promote the subordinates position and “To be blunt it should be obvious to any reasonably intelligent person that for a manager in an organisation such as Westpac to form a romantic relationship with a direct subordinate creates the potential for a conflict of interest,” Said the Fairwork Commissioner. The question before the Fair Work Commissioner was, was it fair , reasonable and not harsh? The commissioner said that the decision by Westpac warranted and upheld the decision to dismiss the manager.

 

The Lessons

Whilst organisation can’t stop you from beginning a relationship in the workplace. They certainly can create polices to enable the protection of the organisation and its employees.

a. conflict of interest policy

b. Managers can be trained on how to deal with, report on and make decisions on.

c. Workplace disclosure policies

d. Inductions processes

George Mihalopoulos v Westpac Banking Corporation T/A Westpac Retail and Business Banking (U2014/9618)

 

An incorrectly sent SMS end’s in dismissal,

SMS

after the employee sent a sms  to the employer saying, “You’re a complete dick”.

The Employee an administration assistant alleged that she incorrectly sent a sms  to her employer was actually meant for someone else.

The message then read on to say, “we know this already so please try your best not to tell him that regardless of how you feel the need.” She explained to her employer that the sms was intended for a plumbing contractor (her daughter’s boyfriend) who was about to do some work for the company but it was in fact sent it to the GM instead.

The employer then received another text, saying in part “GM I need to explain…that message came across so wrong. GM…that is not how I feel. My sense of humour is to exaggert…That was a joke within our family…It is so far out of context… Please forget it and just go on as normal. I am very very sorry. It is not how I feel.”

The company terminated her employment.

workplace sms

The Fair Work Commission didn’t accept the sms as being a joke given the evidence before them. “It was far from a “light hearted insult,” it was a hurtful and unpleasant appraisal of the Chairman and Managing Director of her Employer, for whom she earned $95,000 per annum.” In fact, in a small business setting, the Fair Work Commission agreed with the employer that the text was serious misconduct, justifying dismissal without notice.

The niceties of whether an incident of abuse will justify termination with notice, or summary termination (without notice) require consideration of the whole context – size of the business, prevailing culture, background between the players, what exactly was said, who else heard it, length of the employee’s service, the employee’s record, and whether a first and final warning or other disciplinary step short of termination would be more appropriate.

The Lesson

How many of the cuff remarks are made at work that are not intended to be malicious but more letting off steam. This case demonstrates that if the comment is serious enough regardless of who it was intended for it may warrant a dismissal. The Commission did in fact think the dismissal was not harsh, unjust, or unreasonable.

Double check the message you’re going to send, especially if its disparaging,  before you press that SEND button.

Louise Nesbitt v Dragon Mountain Gold Limited (U2014/285)

Picture:dojsoftware.com,

Privacy Laws

privacy gary tremolada leadership trainer and assessor

By Jonathan Thomas, Michael Lam, Svetlana Plotnikova

Moore Stephens Accountants

WHAT ARE THE IMPLICATIONS FOR BUSINESS?

1. The new regulations are enforceable

The OAIC has extended powers to enforce Australian privacy law. The Commissioner explained that the new regulations represent “a stronger, hard-edged, coercive regime, but the emphasis is still on conciliation.”

From March 2014, the OAIC will have the power to initiative investigations itself, and as a result of a consumer complaint. If conciliation isn’t possible, the OAIC will be able to have organisations make an undertaking to improve their systems for collecting, storing and using personal information. If they don’t, the OAIC will be able to pursue legal action and seek financial penalties from those organisations.

Case study: Penalties for Google

Google was fined in Spain and France for downloading individuals’ personal data from unsecured wifi networks through its Street View service, while United States regulators required it to make an undertaking about its conduct over the ensuing two years. The new Australian laws give the OAIC extended powers to apply similar penalties to organisations operating here.

2. Businesses need to obtain consent—and abide by it

Businesses may only use personally identifiable information for the purposes approved by the individual who provided it.

Case study: Preempting additional uses

Payroll can’t share employees’ bank details with accounts payable for reimbursement purposes. One solution is to obtain the sharing consent required by the organisation at the point of data collection.

“The Principles also require you to tell people how they’ll be adversely affected if they don’t consent to data sharing,” the Commissioner said.

3. The law isn’t retrospective, but it does apply to the data you’ve already collected

The new laws don’t apply to the collection of data in the past. But they do apply to the way you store, secure, and use that data now and in the future. The regulations also require you to keep it up to date and complete.

Case study: Making staff information available to clients

A global business presenting personal information on staff members to potential clients may need to obtain consent from staff members to reuse their personal (or profile) information for this purpose, even if that information was collected before the new laws come into effect, or the staff members are located overseas.

4. Emerging technologies present fresh compliance challenges

New technologies present new hurdles for regional or national legislation like the APPs.

Case study: Destination—Cloud

Attendees flagged that they might store data in cloud services to share with colleagues, but that they don’t have any idea where the service is hosted or the data is stored.

“The Australian privacy laws follow the information wherever it goes,” the Commissioner said.

“If you’re collecting personal information in Australia and sending it overseas, you’re subject to the Australian Privacy Act wherever you send that information, unless the country you send it to has a comparable law for privacy.”

He commented that the United States, for example, does not have a comparable law. But he also explained that the Australian laws apply to all Australian businesses with a turnover of 3 million or more, so Australian-based cloud service providers are required to abide by the new laws, too.

WHAT CAN YOU DO?

Businesses should reassess their existing privacy policies, procedures and systems to ensure they’re adequate to meet the new changes.

“You have to get on top of the privacy principles,” the Commissioner said. “Do a privacy impact assessment.”

He suggested business focus on questions including:

  • What is the personal information on our systems?
  • Can we identify it?
  • How’s it being used and stored?
  • Who are we giving it to?

“It’s not simple,” he added, “but it can be straightforward.”

LEGISLATIVE IMPLICATIONS FOR INDIVIDUALS

  • The seminar also highlighted some of the ways the new legislation will affect individuals.
  • Be aware that your personal information can be used for purposes beyond those to which you’ve consented, so long as it’s de-identified.
  • Even something as simple as an email address may be personally identifying, although generic email addresses usually aren’t personally identifying.
  • You are permitted by the new laws to interact with organisations anonymously or under a pseudonym as far as is practical.
  • If an associate gives you their business card, they’re obviously consenting to you having that information. But they’re not consenting to you aggregating that information and selling the database to others, for example.

What are you doing about it in your business?

Picture:whatsonaustralia.com

Supplying unlimited alcohol at a work party ended in a dismissal.

The Story
by Gina Bozinovski

The facts surrounded the evening of the employers Christmas party which involved a series of conduct by employee. The facts of the case involve behaviour over a period of about 5 to 6 hours, during which employee engaged in drinking (by his own admission) about 10 beers and 1 vodka and coke.

The allegations against employee are summarised as follows:

  1. Inappropriate behaviour and language which included swearing at a director and senior manager;
  2. Sexual harassment of a female employee which included repeated questioning about the employee’s personal life and indirectly requesting her telephone number;
  3. Bullying of another employee – first occasion (at the function);
  4. Bullying of the same employee  by calling her a derogatory name (at the function);
  5. Bullying of another employee (first occasion at the function in which the employee swore at her and acted aggressively toward her);
  6. Further harassment of another female employee (second incident);
  7. Sexual harassment of another female employee(where he kissed her on the lips); and
  8. Sexual harassment of another female employee (where he knew the colour of her underwear).

The employer investigated the number of complaints and subsequently held a meeting with the employee. It was agreed at the meeting that the company would consider the issues and would communicate its decision to the employee on 20 January 2015 on his return from leave. Upon his return from leave, the employee was dismissed by the employer. In its dismissal letter, the employer outlined two occurrences which were the bases for dismissal:

  • Employees’ sexual harassment of female employee (point 2 above); and
  • Employees’ harassment of female employee (point 7 above).

The employer argued that the two incidences constituted sexual harassment for which the employer could be held vicariously liable under the Sexual Discrimination Act (SD Act) and therefore was grounds for dismissal.

The employee contended that his dismissal was harsh, unfair and unjust and sought reinstatement.

Reasoning
The FWC considered whether the two allegations of sexual harassment relied upon by the employer were valid reasons for the employees dismissal. Ultimately, it held that there were not.

No sexual harassment at the function

The FWC considered whether the conduct of the employee at the Christmas party itself (between the hours of 6pm and 10pm) consisted sexual harassment and therefore whether reliance on allegation 2 above (the sexual harassment of female employee) was grounds for dismissal. It was held, that although it was reasonable to conclude that the female employee may have been offended, humiliated or intimidated, the line of questioning and demeanour of the employee did not contain the “requisite sexual nature…no express sexual advance or proposition” and whilst it was “unpleasant..(and)..a boorish attempt by a drunk to lay the foundation for a future relationship with a woman he hardly knew (by making an) oafish intrusion into matters of personal sensitivity ” were not sufficiently serious to constitute a valid reason for dismissal

After function activity no liability

Vice President Hatcher held that the majority of the allegations, being allegations 4, 6, 7 and 8, were held after the end of the company function (at or after 10pm) in the upstairs or on the street. After a lengthy discussion of the SD Act and consideration whether the activity was within the scope of the employee’s employment, Vice President Hatcher ultimately concluded that such conduct was private activity and therefore could not constitute a valid reasons for dismissal. At paragraph 101 of the Decision Vice President Hatcher states:

“I do not consider that conduct which occurred at the upstairs bar can be said to be in connection with the employees employment. The social interaction which occurred there was not in any sense organised, unauthorised, proposed or induced by (employer). Those who gathered there did so entirely of their own volition. It was a public place. There was nothing in the Code of Conduct or relevant policies which suggested they had any application to social activities of this nature … (and) no evidence that such expectations was communicated to employees”

It was held that the employees conduct in the upstairs bar was “merely incidental to his employment “, not rendered unlawful by the SDA Act and therefore not conduct for which the employer was vicariously liable. The reliance by the employer on point 7 of the allegations (the harassment of female employee at the upstairs bar) did not constitute a valid reason for dismissal, “even though that conduct fell within the statutory definition of sexual harassment ”

Bullying of other employee

Vice President Hatcher considered that allegation 5  was grounds for dismissal. He held that the employee was “aggressive, intimidatory and bullying…given that the employee was an intoxicated middle aged man and the female employee was a much younger and smaller female. ” He considered that on any reasonable view the employees behaviour constituted bullying and the incident constituted a valid reason for the dismissal. However, as allegation 5 had not been put to the employee and he did not have a proper opportunity to respond, then the employer could not retrospectively rely on the allegation for grounds for dismissal .

The Decision
Vice President held that the employees dismissal had been harsh, unjust or unreasonable on the following basis:

  • There was no evidence that the employee approaches to female employee had any ongoing consequence for the workplace, that is, it did not impact her capacity to work;
  • The employee had previously a good work record in excess of 7 years of permanent employment;
  • The employee behaviour at the Christmas party was “isolated” and “aberrant in nature”;
  • The provision of alcohol at the Christmas party was a mitigating factor as “alcohol tends to induce a loss of self-restraint and a sense of responsibility”. The provision of alcohol was an exacerbating factor and in Vice President Hatcher’s opinion “is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour…but at the same time allow the unlimited service of free alcohol at the function…I consider that the role of alcohol at the functions weighs, at least in a limited way, in favour of a conclusion that the dismissal was harsh .”

Lessons for employers
The lessons for employers are:

  • Consider how much alcohol is served at your work function, what supervision exists at the function, and whether employees are adequately informed of their obligations under the workplace policies and workplace expectations;
  • Ensure that your codes of conduct and behavioural policies are up to date and consider the wider contexts of employee interaction;
  • If relying on sexual harassment reasons, ensure that you adequately consider the application of the SD Act; and
  • When undertaking investigations of alleged misbehaviour ensure that all avenues are thoroughly investigated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Article by Gina Bozinovski

Stephen Keenan v Leighton Boral Amey NSW Pty Ltd (U2015/2778), 26 June 2015

Age Discrimination in Australian Workplaces?

age discrimination training trainer and assessor Gary tremolada

The Story

An employer relying on their accountant to determine at what age a person reaches retirement age, formally terminated an employees employment stating that the employee had reached retirement age. The accountant stated that, “the policy of the Company that we do not employ any staff that attains the retirement age which in your case is 65 years“.

The employer was ordered to pay $40,000. While that’s a win, what does the employee do now?, Won’t he face the same discrimination when he goes out to find a job? The Judge in the matter said, “general misunderstanding within the community about retirement and the retirement age“. He made the distinction between compulsory retirement and the pension age which is currently 65 years of age. Most people have no compulsory retirement age in Australia, and it is unlawful to force retirement upon an employee because of their age. There are some exceptions, for example, in the case of judges and international airline pilots.

Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors

Story 2

Checking you bias before making a decsion, everyone knows that people choose others because of similarities and its difficult to suspend your bias because ultimately you want to hire people that are much like your self. There are a number of orgainsation who recruit from internal channels. That is offering employees incentives to bring family and freinds to a workplace. In othere words if they are like you and your employer likes you well there might be an oppportunity for employment. As well as hiing a

An airline was said to more subtle and indirect discrimination can be a result of flawed processes or biases that are held by individuals, even sometimes unconsciously, which are more difficult to prove. However, in Virgin Blue Airlines Pty Ltd v Hopper & Ors  the applicants successfully relied upon statistics to support their case of indirect discrimination – just one out of 750 applicants for flight attendant positions aged over 35 was successful in securing a job with the airline over a 12 month period. The appeal court found that the selection criterion of “Virgin Flair” was a subjective measure which allowed inexperienced and young assessors to favour people who were similar to themselves. Virgin Blue was ordered to pay each of the applicants between $7,000 and $12,000 in damages and to pay their legal costs.

gary tremolada trainer and assessor

https://www.humanrights.gov.au/our-work/age-discrimination/publications/issues-paper-employment-discrimination-against-older

Picture: you-can-learn-basic-employee-rights.com

Can an employer terminate you for out-of-hours conduct?

time managment gary tremolada

The Story

An employee who worked for the Department of Corrective Services was charge with domestic violence in an altercation with his spouse and daughter. This was the 3rd time. The 3rd time he was taken prescription medication for anxiety and depression.

The court held that he was to attend counselling. In the interim the employer issued the employee with final notice and terminated the employee for the out of hours incidents. There was no evidence the employee was under performing in the workplace.The Commissioner found that the employer had acted harsh, unreasonably and unjustly.

The employer in their warning said the following;

“I expect all officers, whether on duty or not, to act lawfully at all time… behaviour off duty will be of concern to the Department if it is unlawful or if it brings, or has the potential to bring, the Department into disrepute. [The Code of Conduct and Ethics] also states ‘Any private activity which may adversely affect your job performance will be regarded as a work-related issue. Such activity could include alcohol abuse, drug use or violent behaviour’…

The employee claimed that he was unfairly dismissed. The Commissioner agreed in this instance, that he indeed had been unlawfully dismissed. However, the commissioner made comments to the effect of, employees behaviour was “reprehensible and abhorrent” but did not warrant a dismissal. The Commissioner ordered the employer to reinstate the employee.

Lessons

Although you may find someones behaviours as not being something that you agree with, you still must follow the Act and apply responsibility, not harsh or unjust determinations when deciding whether anything should be done by the workplace.

Follow you process for performance and not anything else.

Be reasonable, not harsh or unjust

Silling v Corrective Services NSW [2011] NSWIRComm 1056

 

Employee request he not work the Sabbath..

choices court decsions gary tremolada

The Story

An employee reconnecting with his religion requested that his employer accommodate the request of changing his work times. The employer responding by reducing his work load and therefore reducing his remuneration for working fewer days. His pay went from $113,000 down to $85,000.pa.

The employee lodge a workers compensation claim. He claim that he had suffered psychiatric injury and as a result of “Unreasonable Management” action. His claim was based on the fact that his employer took too long to respond to the request and that the employer treated him unfavorably which in turn lead him to be financial worse off. For these reasons the employee alleged his employer indirectly discriminated against him. (Indirect discrimination occurs where an employer’s policies or work practices are the same for everyone but place a particular employee or group of employees at a disadvantage.)

The court rejected his claim stating that the employer took reasonable management action and could not be held accountable for personal reasons/decisions.

The employee appeal the decision and the decision was upheld.

Lessons

Ensure that all requests are dealt with expeditiously and taking into account operational requirements and time to decisions.

Don’t however, intolerable to some people make impulsive decisions that may have consequence. Remember, the you are not working to the requester’s time table, you’ve got your own.

Ensure there is communication even in the face of undue pressure. Keep it polite and professional.

Employee will need to be responsible for decisions they make that may impact the organisations ability to generate an income and therefore keep the workforce employed.

(McMah v Blackwood & BHP Billiton Coal Pty Ltd(2015) ICQ 009)

 

Chef threatens another over a cake…

An employee was dismissed after allegation of serious misconduct.

swear jar court case

The Story

The employee  a chef at an Age Care facility baked a cake for a resident. Another team member made a complaint  that the standard of the cake was not to an acceptable standard. The chef allegedly threatened her which they denied. The chef told her to get away from her.

After things settled  the chef apologised to the other team member. The employer suspended with pay the chef pending  an investigation. As part of the investigation the employer asked the chef to provide reasons as  to why employment should not be terminated. The chef involved the union and by the end of the process and therefore took the decision to terminate employment.

The employee applied for unfair dismissal. The commission found that there was no valid reason for termination was unfair and disproportionate response to the situation. Therefore, the commission deemed it  unfair, unjust, harsh and unreasonable.

Lessons

Your process has to be fair, reasonable, not harsh or unjust.

Longford v Aboriginal Elders & Community Care Services Inc t/a Aboriginal Elders Village